Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 1 of 20 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 10-223 (RBW) ) WILLIAM R. CLEMENS, ) ) Defendant ) ____________________________________ MEMORANDUM IN SUPPORT OF NON-PARTY DLA PIPER’S MOTION TO QUASH SUBPOENA In accordance with Rule 17(c)(2) of the Federal Rules of Criminal Procedure, non-party DLA Piper US LLP (“DLA Piper”) submits this memorandum in support of its motion to quash the subpoena duces tecum served on it by Defendant William R. Clemens on or about February 10, 2011. INTRODUCTION On March 30, 2006, the Commissioner of Baseball engaged Senator George Mitchell and his law firm, DLA Piper, to investigate allegations that a number of players in Major League Baseball had illegally used steroids and other performance enhancing substances. On December 13, 2007, following an extensive investigation that included numerous witness interviews, Senator Mitchell published his “Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball” (the “Mitchell Report”). Mr. Clemens has now issued a subpoena seeking to compel DLA Piper to produce the notes that DLA Piper attorneys took during the interviews of three fact witnesses (Jose Canseco, Brian McNamee, and Kirk Radomski), the memoranda that DLA Piper attorneys wrote to memorialize what they thought Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 2 of 20 was important in these interviews, and any other written communications related to those interviews. As shown in greater detail below, there are twenty-five documents in DLA Piper’s possession, custody, or control that are responsive to the subpoena. The vast bulk of these are either handwritten or typed notes taken during interviews or memoranda prepared after interviews summarizing the substance of the interviews. There is also one email prepared after an interview summarizing the substance of the interview and one form summarizing the substance of a telephone conversation with an attorney for one of the witnesses. Finally, there is a declaration executed by a DLA Piper attorney and four items of correspondence. DLA Piper has produced the declaration and the four items of correspondence. The other twenty documents, however, constitute classic attorney work product. As described in more detail in this memorandum, these documents were prepared in anticipation of litigation, they are “opinion” work product of the sort that is virtually immune from production, and, even if they were “ordinary” or “fact” work product, Mr. Clemens has not made, and cannot make, the showing required to compel their production. Accordingly, the subpoena should be quashed as to these twenty documents. FACTUAL BACKGROUND (A) The Office of the Commissioner of Baseball The Office of the Commissioner of Baseball (the “Commissioner”) is an unincorporated association doing business as “Major League Baseball.” See Exhibit 1 (Major League Constitution) at 1. It has as its members the thirty major league baseball clubs. Id. The functions and powers of the Commissioner are established by contract. The functions and powers of the Commissioner are enumerated in the Major League Constitution, which is the - 2 - Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 3 of 20 governing agreement among the thirty major league clubs. Id. These functions and powers include “[t]o determine, after investigation, what preventive, remedial or punitive action is appropriate in the premises, and to take such action either against Major League Clubs or individuals, as the case may be.” Id. They also include negotiating agreements with the Major League Baseball Players Association, such as the 2002 Basic Agreement discussed in the Mitchell Report, which set forth a system of mandatory drug testing for major league players. (B) Overview of the Mitchell Report The Mitchell Report (Exhibit 2) describes in detail the events that led up to and required Senator Mitchell’s investigation and the resulting report. Salient events in this history include the rise of the “Steroids Era” beginning in the late 1980s; numerous incidents involving players and steroids or drug paraphernalia in 2000 and 2001; the Commissioner’s negotiation with the Players Association of the 2002 Basic Agreement, which included both mandatory random drug testing and a formal procedure for reasonable cause testing; the drug scandal involving the Bay Area Laboratory Co-Operative (“BALCO”) that first came to public attention in 2003; the moratorium on drug testing agreed to by the Commissioner and the Players Association in 2004 and the subsequent resumption of drug testing; Congressional scrutiny of the use of steroids and other performance enhancing substances in Major League Baseball in the form of congressional hearings held in 1973, 2002, 2004, and 2005; and continuing disclosures of the use by players of illegal performance enhancing substances in 2004 through 2007. (C) The Clemens Subpoena The Clemens Subpoena (Exhibit 3) seeks the following documents: (1) For each individual listed below, all interview summaries, notes and memoranda related to the “Report to the Commissioner of Baseball of an - 3 - Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 4 of 20 Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball.” (2) All communications between each individual listed below or any person acting on behalf of an individual listed below, on the one hand, and DLA Piper US LLP, or any person acting on its behalf, on the other hand, relating to the “Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball.” List of Individuals Covered by Subpoena Jose Canseco Brian McNamee Kirk Radomski The documents in DLA Piper’s possession, custody, or control that are responsive to the Clemens Subpoena are described below. Most of the individuals mentioned in the descriptions (Charles Scheeler, John Clarke, Brett Ingerman, Jeffrey Gordon, Ellen Ginsberg, and Robert Gaumont) are attorneys at DLA Piper who assisted Senator Mitchell in his investigation and in the preparation of the Mitchell Report. The internal documents that are described below have been kept confidential and have not been shown to any persons outside DLA Piper. Documents Relating to Jose Canseco 1. A June 13, 2006 letter from Charles Scheeler to Mr. Canseco in which Mr. Scheeler introduces himself and requests Mr. Canseco’s cooperation. This document has been produced. 2. A June 15, 2006 email from Mr. Scheeler to Linda Caballero, a paralegal at DLA Piper, entitled “For the Canseco Witness Folder,” that summarizes Mr. Scheeler’s telephone conversation that day with Mr. Canseco. Attorney work product. 3. Mr. Scheeler’s handwritten notes of his June 15, 2006 telephone conversation with Mr. Canseco. Attorney work product. 4. A June 26, 2006 email exchange between Mr. Scheeler and Robert Saunooke, Mr. Canseco’s attorney, working out dates for Mr. Canseco’s interview. This document has been produced. - 4 - Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 5 of 20 5. A September 5, 2006 memorandum to file by Jeffrey Gordon summarizing the July 11, 2006 interview of Mr. Canseco conducted by Mr. Scheeler. Mr. Gordon and Mr. Canseco’s attorney, Mr. Saunooke, were also present during the interview. Attorney work product. 6. Jeffrey Gordon’s handwritten interview notes of the July 11, 2006 interview of Mr. Canseco. Attorney work product. 7. A February 1, 2007 letter from Senator Mitchell to Mr. Saunooke requesting that Mr. Canseco sign an enclosed Waiver and Consent allowing access to Mr. Canseco’s medical data. This document has been produced. 8. A document captioned “MLB Investigation Inquiry / Tip Intake Form” that summarizes a telephone conversation with Mr. Saunooke initiated by Jeffrey Gordon and Ellen Ginsberg on March 5, 2007 regarding Mr. Canseco’s online drug purchases. Attorney work product. Documents Relating to Brian McNamee 1. A July 13, 2007 memorandum to file by Brett Ingerman summarizing a July 9, 2007 interview of Mr. McNamee. Senator Mitchell, Mr. Scheeler, John Clarke, and Mr. Ingerman were present for the interview, as were two Assistant United States Attorneys (Matt Parrella and Jeff Nedrow), two IRS agents (Jeff Novitsky and Erwin Rogers), an FBI agent (Heather Young), and Mr. McNamee’s attorney (Earl Ward). Attorney work product. 2. John Clarke’s typed notes of the July 9, 2007 interview of Mr. McNamee. Attorney work product. 3. Mr. Scheeler’s handwritten notes of the July 9, 2007 interview of Mr. McNamee. Attorney work product. 4. An October 4, 2007 memorandum to file by Ellen Ginsberg summarizing an October 3, 2007 interview of Mr. McNamee. Senator Mitchell, Mr. Scheeler, and Ms. Ginsberg were present for the interview, as were an AUSA (Mr. Parella), two IRS agents (Mr. Novitsky and Mr. Rogers), and an FBI agent (Ms. Young). Mr. McNamee and his attorney (Mr. Ward) participated via conference call. Attorney work product. 5. A December 3, 2007 memorandum to file by Ellen Ginsberg summarizing a December 3, 2007 interview of Mr. McNamee. The interview was conducted via a conference call. Participants in the conference call were Mr. McNamee, his attorney (Mr. Ward), Senator Mitchell, Mr. Scheeler, Ms. Ginsberg, an AUSA (Mr. Parella), an IRS agent (Mr. Novitzky), and an FBI agent (Ms. Young). Attorney work product. - 5 - Case 1:10-cr-00223-RBW Document 26-1 Filed 03/18/11 Page 6 of 20 6. A December 5, 2007 memorandum to file by Mr. Scheeler summarizing a telephone conversation he had that day with Mr.